AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is entered into as of the day
of October 29, 2003 by and between the following:
ADVANCED HEALTHCARE TECHNOLOGIES, INC. (the "Company"), a Nevada
corporation, whose address is 00000 Xxx Xxxx Xxxx, Xxxxx, Xxxxxxxx
00000; and
NUTRATEK, LTD. ("NutraTek"), a Utah LLC, whose address is 000 Xxxx Xxxxx
Xxxxxx Xxxxxxx #000, Xxxxx Xxxxxx, Xxxx 00000.
Recitals.
A. The Company and NutraTek desire to effect a Type B reorganization
under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended, on the terms and conditions set forth below, whereby the
Company will acquire all of the issued and outstanding shares of
NutraTek common stock by issuing solely in exchange therefore to
NutraTek's members, shares of the Company's Common Capital Stock (the
"Company Stock").
NOW THEREFORE in consideration of the foregoing recitals, the mutual
representations, warranties and covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
I. BASIC TRANSACTION.
1.1 Plan of Reorganization. Subject to the terms and conditions of
this Agreement and pursuant to Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended, the parties to this Agreement shall
effect a Type B reorganization (the "Reorganization") whereby all of the
outstanding ownership of NutraTek will be exchanged for 101,000,000
(post rercapitalization) shares of the Company's Common Stock. In
addition there will be 39,000,000 shares issued to those parties
designated as affiliates of NutraTek pursuant to Disclosure schedule 1.1
attached hereto. All such affiliates have agreed and do hereby agree to
assign all of their voting rights to Xxxxxx Xxxxxxx, President of
NutraTek. The Reorganization shall take place on the Closing Date
(hereinafter defined in Section 1.2 of this Agreement) and shall be
accomplished in accordance with Article V below.
1.2 Closing. The closing of the Reorganization and exchange
contemplated and provided for in this Agreement (the "Closing") shall
take at a time and place to be mutually agreed upon by the parties on
the third business day following the satisfaction or waiver or all
conditions to the obligations of the parties to consummate the subject
reorganization and exchange (other than the conditions with respect to
actions the respective parties will take at the Closing itself) or such
other date as the parties may mutually determine (the "Closing Date");
provided, however, that the Closing Date shall occur no later than
November 30, 2003, absent regulatory delays.
1.3 Terms of Exchange. On the Closing Date:
The Company shall ratably issue and cause to be delivered to the
NutraTek's members certificates representing 101,000,000 together with
the 39,000,000 affiliate shares or its equivalent post re-capitalization
shares of the Company's Common Capital Stock, in consideration for the
transfer to the Company by the NutraTek owners of all the ownership
interests of NutraTek issued and outstanding as of the Closing Date. No
other form of ownership of any preference or type of NutraTek are
outstanding on the date of this Agreement or shall be outstanding on the
Closing Date; and
The NutraTek members shall, in consideration for their receipt of the
shares of the Company's Common Capital Stock, transfer and deliver to
the Company certificates representing all of the issued and outstanding
membership shares of NutraTek owned by them. The Company shall receive
good and marketable title to all of NutraTek issued and outstanding
common stock free and clear of all liens, mortgages, pledges, claims or
other rights or encumbrances whatever, whether disclosed or undisclosed.
1.4 Restrictions on Transfer. The Company's Common Capital Stock,
when issued and delivered hereunder, shall not be registered under the
Securities Act of 1933, as amended, nor shall the NutraTek Members be
granted any registration rights as to such shares. Each certificate
representing shares of the Company's Common Capital Stock will bear a
customary restrictive legend which states in effect that such shares
have not been registered under the Securities Act of 1933 and
consequently may not be transferred, assigned, sold or hypothecated
unless registered under the Securities Act of 1933 or, in the opinion of
Company's counsel, an exemption from the registration requirements of
the Securities Act of 1933 is available for such transaction.
II. REPRESENTATIONS AND WARRANTIES.
2.1 Representations and Warranties of NutraTek. NutraTek hereby
represents and warrants to the Company that the statements contained in
this Section 2.1 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as
though then and as though the Closing Date were substituted for the date
of this Agreement throughout this Section 2.1), except as set forth in
the disclosure schedule accompanying this Agreement (the "NutraTek
Disclosure Statement. The NutraTek Disclosure Statement will be arranged
in paragraphs corresponding to the lettered subsections contained in
this Section 2.1.
(a) Due Organization. NutraTek is a Limited Liability Company duly
organized, validly existing, and in good standing under the laws of the
State of Utah and is qualified to do business and is in good standing in
all jurisdictions in which such qualification is necessary. NutraTek has
all requisite legal power and authority to conduct its business, to own
its properties and to execute and deliver, and to perform all of its
obligations under this Agreement to which it is a party.
(b) Due Authority. The execution, delivery and performance under
this Agreement and the documents provided for herein by NutraTek have
been authorized by all necessary legal action; provided, however, that
NutraTek cannot consummate the Reorganization unless or until it
receives the requisite approval from its members.
(c) Capitalization. NutraTek's authorized capitalization presently
consists of _______ shares of capital stock, no par value, of which, as
of the date hereof, _______ shares are issued and outstanding and ______
shares have been reserved for issuance based upon certain specified
contingencies. All issued and outstanding shares have been duly
authorized, validly issued and fully paid and non-assessable, and
subject to no preemptive rights of any shareholder.
(d) Outstanding Options, Warrants or Other Rights. NutraTek has no
outstanding warrants, options or similar rights whereby any person may
subscribe for or purchase shares of its ownership, nor are there any
other securities outstanding which are convertible into or exchangeable
for its ownership, and there are no contracts or commitments pursuant to
which any person may acquire or NutraTek may become bound to issue any
ownership.
(e) Copies of Documents Genuine. All copies of NutraTek articles
of incorporation and bylaws (each as amended to date) and all minutes of
meetings or written consents in lieu of meetings of shareholders,
directors and committees of directors of NutraTek which have been or
will be furnished to the Company are true, complete, correct and
unmodified copies of such documents.
(f) Officers and Directors. The officers and directors of NutraTek
consists of the following:
Name Office
Xxxxxx Xxxxxxx Director, President
Xxxxxxxx Xxxxxxx Director,
(g) Noncontravention. The execution of this Agreement by NutraTek
and the consummation of the transactions contemplated hereby will not
result in the breach of any term or provision of, or constitute a
default under, any provision or restrictions of any indenture,
agreement, or other instrument or any judgment, order, or decree to
which NutraTek is a party or by which it is bound, or will it conflict
with any provisions or the Articles of Organization and Operating
Agreement.
(h) Litigation. There are no suits, actions or proceedings at law
or in equity, pending or threatened against or affecting NutraTek that
can be expected to result in any materially adverse change in the
business, properties, operations, prospects, or assets or in its
condition, financial or otherwise.
(i) Laws and Regulations. NutraTek has complied with all laws,
rules, regulations and ordinances relating to or affecting the conduct
of NutraTek's business and NutraTek possesses and holds all licenses and
permits required in its business by federal, state or local authorities.
(j) Full Disclosure. Neither this Agreement nor any other
instrument furnished to the Company by or on behalf of NutraTek contains
any untrue statement of a material fact or omits to state a material
fact necessary to make any statements made not misleading, and there is
no fact that materially and adversely affects, or foreseeably may
materially and adversely affect, NutraTek's financial condition,
liabilities, business, or assets that have not been disclosed herein or
in any other instrument.
(k) Representations and Warranties True at Closing. Except as
expressly herein otherwise provided, all of the representations and
warranties of NutraTek set forth herein shall be true as of the Closing
Date as though such representations and warranties were made on and as
of such date.
2.2 Representations and Warranties of the Company. The Company
represents and warrants to NutraTek and its shareholders that the
statements contained in this Section 2.2 are correct and complete as of
the date of this Agreement and will be correct and complete as of the
Closing Date (as though then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 2.2),
except as set forth in the disclosure schedule accompanying this
Agreement (the "Company Disclosure Statement"). The Company Disclosure
Statement will be arranged in paragraphs corresponding to the lettered
subsections contained in this Section 2.2 and are included in all of its
regulatory filings.
(a) Organization. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Nevada and is qualified to do business and is in good standing in all
jurisdictions in which such qualification is necessary. The Company has
all requisite corporate power and authority to conduct its business, to
own its properties and to execute and deliver, and to perform all of its
obligations under this Agreement to which it is a party.
(b) Due Authority. The execution, delivery and performance under
this Agreement and the documents provided for herein by Company have
been authorized by all necessary corporate action.
(c) Capitalization. The Company's authorized capitalization
presently consists of 100,000,000 authorized shares of .001 par value
common stock. Prior to the date of closing the Company will amend its
articles of incorporation to authorize not less than 250,000,000 shares
of .001 par value common capital stock. The Company also has 5,000,000
..01 par value Preferred Shares authorized without designation, none of
which are issued or outstanding. All issued and outstanding shares have
been duly authorized, validly issued and fully paid and nonassessable
and all shares of Company's Common Capital Stock to be issued and
delivered on the Closing Date to the NutraTek Members and affiliates
pursuant to the Agreement will be, when so delivered, duly authorized
and validly issued and outstanding, fully paid and non-assessable, free
and clear of any lien, charge, claim or encumbrance whatsoever and
subject to no preemptive rights of any Shareholder.
(d) Outstanding Options, Warrants or Other Rights. Except as set
forth in the Company Disclosure Statement [2.2(d)], the Company has no
outstanding warrants, options or similar rights whereby any person may
subscribe for or purchase shares of its common stock, nor are there any
other securities outstanding which are convertible into or exchangeable
for its common stock, and there are no contracts or commitments pursuant
to which any person may acquire or NutraTek may become bound to issue
any shares of such common stock. Included in Disclosure 2.2(d) are
those shares to be issued to certain investor relations and public
relations firms and or individuals totaling 50,000,000. Xxxxxx Xxxxxxx
shall receive a voting proxy on all IR and PR shares issued pursuant to
this agreement.
(e) Financial Statements. The Company has provided NutraTek with
its most recent financial statements dated June 30, 2003 and will
provide its September 30, 2003 un-audited financials statements when
they are completed by the Company and reviewed by its auditor. These
financial statements have been prepared in accordance with generally
accepted accounting principles, are correct, complete, and fairly
represent the financial position and results of operations of the
Company as of said date and for the periods indicated.
(f) Adverse Changes. Since the date of the financial statements
described in Section 2.2(e) above, there have not been, and prior to the
Closing Date, there will not be, any material changes in the financial
position of the Company and its subsidiaries (if any) except changes
arising in the ordinary course of business and except changes that are
otherwise disclosed in writing to NutraTek.
(g) Undisclosed Liabilities. The Company does not have any
liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due) except for
liabilities set forth on the face of the Balance Sheet delivered to
NutraTek in accordance with the provisions of Section 2.2(e) above, and
liabilities which have arisen after the date of the financial statements
provided in accordance with the provisions of Section 2.2(e) above in
the ordinary course of the Company's business.
(h) Copies of Documents Genuine. All copies of the Company's
articles of incorporation and bylaws (each as amended to date) and all
minutes of meetings or written consents in lieu of meetings of
shareholders, directors and committees of directors of the Company which
have been or will be furnished to NutraTek are true, complete, correct
and unmodified copies of such documents.
(i) Noncontravention. The execution of this Agreement by the
Company and the consummation of the transactions contemplated hereby
will not result in the breach of any term or provision of, or constitute
a default under, any provision or restrictions of any indenture,
agreement, or other instrument or any judgment, order, or decree to
which the Company is a party or by which it is bound, or will it
conflict with any provisions or the Articles of Incorporation or Bylaws
of the Company.
(j) SEC Filings. The Company is a fully reporting company under
the Securities Act of 1933, as amended, and the Securities Exchange Act
of 1934, as amended (collectively the "Public Reports") currently
trading on the OTC-BB and is current in all of its filing requirements
with the Securities Exchange Commission. The Company will timely file
and deliver a copy of its 10Q report filed with the Securities Exchange
Commission to NutraTek and its counsel.
(k) Litigation. There are no suits, actions or proceedings at law
or in equity, pending or threatened against or affecting the Company
that can be expected to result in any materially adverse change in the
business, properties, operations, prospects, or assets or in its
condition, financial or otherwise except as disclosed on Disclosure
2.2(k) hereto.
(l) Laws and Regulations. The Company has complied with all laws,
rules, regulations and ordinances relating to or affecting the conduct
of the Company's business and the Company possesses and holds all
licenses and permits required in its business by federal, state or local
authorities.
(m) Full Disclosure. Neither this Agreement nor any other
instrument furnished to NutraTek by or on behalf of the Company contains
any untrue statement of a material fact or omits to state a material
fact necessary to make any statements made not misleading, and there is
no fact that materially and adversely affects, or foreseeably may
materially and adversely affect, the Company's financial condition,
liabilities, business, or assets that have not been disclosed herein or
in any other instrument
(n) Representations and Warranties True at Closing. Except as
expressly herein otherwise provided, all of the representations and
warranties of the Company set forth herein shall be true as of the
Closing Date as though such representations and warranties were made on
and as of such date.
III. COVENANTS.
From the date of this Agreement until the Closing Date, the Company and
NutraTek agree as follows:
3.1 General. Each of the parties hereto will use its best efforts to
take all actions and to do all things necessary in order to consummate
and make effective the transaction contemplated by this Agreement
(including satisfaction of the closing conditions set forth in Article
IV below).
3.2 Notices and Consents. Each of the parties hereto will give any
notices to third parties, and will use its best efforts to obtain any
third party consents, that the other party reasonably may request in
connection with any matter referred to in Sections 2.1 or 2.2 above.
Regulatory Matters and Approvals. Each of the parties hereto will give
notice to, make any legally required filings with, and use its best
efforts to obtain any authorizations, consents and approvals of
governments and governmental agencies in connection with the matters
referred to in Sections 2.1 and 2.2 above. Without limiting the
generality of the foregoing:
(a) Securities Law Compliance. The Company will take all actions
as may be necessary, proper and advisable, under Federal and state
securities laws in connection with the offering and issuance of the
Common Capital Stock to the NutraTek Members and affiliates in
connection with the Reorganization provided for under this Agreement.
(b) Nevada Corporation Law. The Company will obtain, as soon as
reasonably practicable, any required consents or approvals providing for
the acquisition of NutraTek, all in accordance with the provisions of
the Nevada Corporation Law.
(c) Utah Corporation Law. NutraTek will take any legal action
required of it to adopt and approve this Agreement and the approval of
the Reorganization with the resultant sale and transfer to the Company
of all of the ownership interests of NutraTek common stock.
(d) Review of History. NutraTek and its counsel have reviewed all
prior Securities and Exchange filings of the Company and have satisfied
themselves as to the information contained therein.
3.4 Operations of Business. NutraTek will not engage in any practice,
take any action, or enter into any transaction outside the ordinary
course of business. Without limiting the generality of the foregoing,
NutraTek will not:
(a) authorize or effect any change in its charter or bylaws;
(b) grant any options, warrants or other rights to purchase or
obtain any of its capital stock or issue, sell, or otherwise dispose of
any of its capital stock (except upon the conversion or exercise of
options, warrants, and other rights currently outstanding);
(c) declare, set aside, or pay any dividend or distribution with
respect to its capital stock (whether in cash or in kind), or redeem,
repurchase or otherwise acquire any of its capital stock;
(d) Issue any note, bond or other debt security or create, incur,
assume, or guarantee any indebtedness for borrowed money or capitalized
lease obligations outside the ordinary course of business;
(e) Grant any security interest on, or otherwise pledge, any of its
assets outside the ordinary course of business except as it pertains to
the indebtedness excepted in subsection (d) above;
(f) Make any capital investment in, make any loan to, or acquire
the securities or assets of any other person or entity outside the
ordinary course of business; and
(g) Make any change in management terms for any of its directors,
officers and employees outside the ordinary course of business.
3.5 Access. The Company and NutraTek each agree that they will permit
the other's directors, officers, accountants, attorneys and other
representatives full access, during reasonable business hours throughout
the term or applicability of this Agreement, to all premises,
properties, personnel, books, records, contracts and documents of or
pertaining to the other's business affairs, operations, properties and
financial affairs as the other party may reasonably request. All
information provided shall be furnished strictly subject to the
confidentiality provision of this Agreement.
3.6 Confidentiality. All information and documents furnished by a
party pursuant to Section 3.5 of this Agreement shall be deemed and
treated as proprietary in nature. Each party (and the NutraTek Members)
agree that it shall hold all information received from another party
pursuant to or in connection with this Agreement in the highest and
strictest confidence and shall not reveal any such information to any
individual who is not one of its directors, officers, key employee,
attorney or accountant, and that it will not use any such information
obtained for any purpose whatsoever other than assisting in its due
diligence inquiry precedent to the Closing and, if this Agreement is
terminated for any reason whatsoever, agrees to return to the other
party any all tangible embodiments (and all copies) thereof which are in
its possession. This covenant shall survive the consummation or
termination of this Agreement.
3.7 Publicity and Filings. All press releases, shareholder
communications, filings with the Securities and Exchange Commission or
other governmental agency or body and other information and publicity
generated by the Company or NutraTek regarding the Reorganization and
exchange contemplated in this Agreement shall be reviewed and approved
by the other party and its counsel before release or dissemination to
the public or filing with any governmental agency or body whatever.
3.8 Notice of Developments. Each party hereto will give prompt
written notice to the other of any material adverse development causing
a breach of any of its own representations and warranties in Sections
2.1 and 2.2 above. No disclosure by any party hereto pursuant to this
Section 3.8, however, shall be deemed to amend or supplement the
disclosure statement provided under the terms of this Agreement or to
prevent or cure any breach of warranty, breach of covenant or
misrepresentation.
3.9 Stand-Still Agreement. Neither the Company nor NutraTek will (and
each NutraTek Member agrees that it will not on behalf of NutraTek)
solicit, initiate, or encourage the submission of any proposal or offer
from any person or entity relating to any other transaction pending the
closing of the transaction contemplated herein (including any
acquisition structured as a merger, consolidation, or share exchange).
3.10 Covenants of NutraTek_Shareholders. Each of the NutraTek Members
and each affiliate covenants and agrees with, and represents to, the
Company as follows:
(a) No Registration of Company Stock. Each of the NutraTek Members
and each affiliate understands that none of the Common Shares to be
received from the Company at Closing have not been registered under the
Securities Act of 1933 or any applicable securities laws of any state.
Each of the Shareholders hereby represents and warrants that the Shares
are being acquired by him solely for investment and not with a view to
distribution or immediate resale thereof.
(b) Stock Legend. Each NutraTek Shareholder and each affilate
further agree and understand that each certificate representing such
shares of the Shares issued under the Reorganization and exchange
provided for under this Agreement will bear the customary restrictive
legend conspicuously noted on said certificate.
3.11 Election of Officers. The Company agrees that Xxxxxx Xxxxxxx,
the current President of NutraTek, shall be elected the President of the
Company and remain President of NutraTek after the consummation of the
Reorganization and exchange provided for under the terms of this
Agreement and shall be further authorized, to select the officers and
directors of NutraTek; provided however that Xxxxxxx Xxxxxxx, the
current President and Director of Advanced Healthcare shall remain a
director of the Company for a period of not less than six months at his
discretion or should he decline, then Xxx Xxxxxxxxx shall remain as a
director. All other existing Officer and Directors shall resign at or
prior to the closing. The Company covenants and agrees to approve of
the selections made by Xxxx Xxxxxxx and further that Xxxx Xxxxxxx and
Xxx Xxxxxx shall be appointed, effective as of the Closing Date, members
of the Company's Board of Directors and shall elect the remainder of the
directors except as specified herein. This covenant shall survive the
consummation of this Agreement.
3.12 Employment Agreement. The Company agrees that the employment
agreements between NutraTek, Xxx Xxxxxx and Xxxxxx Xxxxxxx, copies of
which are attached hereto as Disclosure Ex. 3.12 shall continue in
effect according to the terms thereof. This covenant shall survive the
consummation of this Agreement.
IV. CONDITIONS TO THE EXCHANGE.
4.1 Conditions Precedent to Exchange by Company. The obligation of the
Company to consummate the Reorganization contemplated by this Agreement
are subject to satisfaction, or written waiver by the Company, of the
following conditions at or before the Closing Date:
(a) Representations and Warranties True. The representations and
warranties by NutraTek and the NutraTek Members in the Agreement shall
have been correct on and as of the Closing Date with the same force and
effect (except as expressly provided in the Agreement or otherwise
approved in writing by the Company) as though such representations and
warranties had been made on and as of the Closing Date.
(b) No Adverse Change. NutraTek shall not have suffered any
adverse change in its financial condition or business and no properties
or assets of NutraTek shall have suffered any destruction, damage or
loss, whether or not covered by insurance.
(c) Performance. NutraTek and the NutraTek Members shall have
performed all of the terms, covenants, agreements and conditions of the
Agreement on their respective parts to be performed.
(d) Shareholder Approval. The NutraTek Members shall have approved
the terms and conditions of the Reorganization resulting in the issuance
of the Common Shares as provided for herein and no NutraTek shareholder
shall dissent with respect to the Reorganization provided for in this
Agreement.
(e) Legal Opinion. The Company shall have received the favorable
written opinion of counsel for NutraTek as to those matters set forth in
Exhibit attached hereto and any other matter which the Company may
reasonably requested in connection with the Reorganization provided for
in this Agreement. In rendering the required opinion, counsel may, as to
any factual matter, rely upon a certificate of any public official and
any officer of NutraTek who is cognizant of such fact.
(f) No Restraint. No injunction or restraining order shall be in
effect to forbid or enjoin the consummation of this Agreement.
(g) Approval of Documents. All legal matters in connection with
the consummation of the Reorganization contemplated by this Agreement
and all documents and instruments delivered in connection therewith
shall be reasonably satisfactory in form and in substance to counsel for
the Company and such counsel shall have received authenticated copies of
those copies of the corporate documents and certificates as counsel for
the Company may reasonably request in connection with this transaction.
(h) Consent to Oxygen Technologies Spin-Off. NutraTek and its
Members hereby acknowledge and agree that the technologies owned by the
Company and all rights to the intellectual property assigned to it
relating to oxygen wound healing and oxygen therapy shall remain in the
Company and shall controlled by Xxxxxxx Xxxxxxx in a newly formed
subsidiary to be created prior to the closing. At the sole option of
said Xxxxxxx Xxxxxxx, upon written notice to Advanced Healthcare, the
subsidiary company created herein may be spun off and sold to the
shareholders of record existing at the time of the closing of the
acquisition of Nutra Tek.on a pro-rata basis. This written election
must be made by Xxxxxxx Xxxxxxx within 180 days of the closing of this
Agreement or shall be void. The consideration for the spin-off shall
be included as part of the consideration for this agreement and the
closing of this transaction shall constitute conclusive approval by the
Nutra Tek shareholders of fair value for the spin-off. No liabilities
shall be created in the newly created subsidiary without the prior
written consent of Xxxxxx Xxxxxxx and the subsidiary shall have no
authority to bind or obligate Advanced Healthcare Technologies, Inc. to
any obligation of any nature or description.
4.2 Conditions to NutraTek Obligations. The obligations of NutraTek
and the NutraTek Members to consummate the Reorganization contemplated
by this Agreement are subject to satisfaction or written waiver by
NutraTek and the NutraTek Members of the following conditions at or
before the Closing Date:
(a) Representations and Warranties True. The representations and
warranties by the Company in the Agreement shall have been correct on
and as of the Closing Date with the same force and effect (except as
expressly provided in the Agreement or otherwise approved in writing by
the Shareholders) as though such representations and warranties had been
made on and as of the Closing Date.
(b) No Adverse Change. The Company shall not have suffered any
adverse change in its financial condition or business and no properties
or assets of the Company shall have suffered any destruction, damage or
loss, whether or not covered by insurance.
(c) Performance. The Company shall have performed all of the
terms, covenants, agreements and conditions of the Agreement on its part
to be performed.
(d) Legal Opinion. NutraTek shall have received the favorable
written opinion of counsel for the Company as to those matters set forth
in Exhibit attached hereto and any other matter which NutraTek may
reasonably request in connection with the Reorganization provided for in
this Agreement. In rendering the required opinion, counsel may, as to
any factual matter, rely upon a certificate of any public official and
any officer of the Company who is cognizant of such fact.
(e) No Restraint. No injunction or restraining order shall be in
effect to forbid or enjoin the consummation of this Agreement.
(f) Approval of Documents. All legal matters in connection with
the consummation of the Reorganization contemplated by this Agreement
and all documents and instruments delivered in connection therewith
shall be reasonably satisfactory in form and in substance to counsel for
NutraTek and such counsel shall have received authenticated copies of
those copies of the corporate documents and certificates as counsel for
NutraTek may reasonably request in connection with this transaction.
V. ACTIONS AT CLOSING.
5.1 Exchange. Each Member share of NutraTek that shall be
outstanding on the Closing Date and held by a NutraTek shareholder shall
be converted into 1,010,000 fully paid and nonassessable shares of the
Company's Common Capital Stock; provided, however, that the number of
shares of the Company's Common Capital Stock into which shares of
NutraTek are converted shall be rounded off to the nearest whole number
of shares, and no fractional shares shall be issued. The number of
shares of the Company's Common Capital Stock that each NutraTek
shareholder shall receive in exchange for his or her shares of NutraTek
common stock are set forth in Exhibit B attached hereto.
5.2 Shareholders' Actions at Closing. On the Closing Date, the
Shareholders, contemporaneously with the performance by Company of its
obligations to be performed at the Closing, shall deliver to the Company
the following:
(a) NutraTek Membership Interests. Stock certificates representing
all of the outstanding shares of NutraTek common stock endorsed for
transfer, with all necessary stock assignments and other pertinent
documents.
(b) Certified Corporate Resolutions. Certified copy of the
resolutions duly adopted by the Managers and Members of NutraTek
authorizing and approving the execution and delivery of this Agreement
and the performance of its obligations hereunder.
(c) Opinion. The opinion of counsel as described in Section 4.2(f)
of this Agreement; and
(d) Other Documents. Such further certificates and documents as
shall be reasonably requested by counsel for the Company to insure
compliance by NutraTek and NutraTek Members of all obligations imposed
upon them hereunder.
5.3 Company's Actions at Closing. On the Closing Date, the Company,
contemporaneously with the performance by NutraTek and the NutraTek
Members of their obligations to be performed at the Closing, shall
deliver to the NutraTek Members the following:
(a) Company Common Capital Stock Certificates. Stock certificates
representing an aggregate of 101,000,000 plus 39,000,000 common shares
to affiliates of Company's Common Capital Stock to which each NutraTek
Member or Affiliate and each designated affiliate shall be entitled to
receive pursuant to this Agreement, as set forth in Exhibit A and
Disclosure 1.1 attached hereto, with each certificate bearing the
restrictive legend described in Section 1.4 above.
(b) Certified Corporate Resolutions. Certified copy of the
resolutions duly adopted by the Board of Directors of the Company
authorizing and approving the execution and delivery of this Agreement
by the Company and the performance of its obligations hereunder.
(c) Opinion. The opinion of counsel as described in Section 4.1(f)
of this Agreement; and
(d) Other Documents. Such further certificates and documents as
shall be reasonably requested by counsel to NutraTek and NutraTek
Members to insure compliance by the Company with all obligations imposed
upon it hereunder.
(e) Registration Agreement. Within 60 days of the closing the
Company shall file a registration statement in such manner as determined
by it and its counsel to register certain of the affiliate shares and
certain consulting shares issued pursuant to this agreement. The
registration shall be paid for by the shareholders registering their
shares pursuant to this paragraph. If the registration statement is not
declared effective within 120 days of the closing, the consulting
shareholders shall have 6.4 million of their eligible shares registered
pursuant to an S-8 registration. The consultants, their total shares
being issued and the shares to be registered are listed on Disclosure
5.3 hereto.
5.4 Stock Rights. On the Closing Date, the NutraTek Members who
have exchanged their shares of NutraTek shares interests for shares of
the Company's Common Capital Stock shall thereupon cease to have any
rights with respect to their NutraTek share interests and their sole
right thereafter shall be with respect to the shares of the Company's
Common Capital Stock received hereunder.
VI. TERMINATION.
6.1 Termination of Agreement. This Agreement may be terminated as
provided below:
(a) The parties hereto may terminate this Agreement by mutual
consent at any time prior to the Closing Date;
(b) The Company may terminate this Agreement by giving written
notice to the Shareholders at any time prior to the Closing Date (1) in
the event NutraTek and/or the Members have breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, the Company has notified NutraTek and/or the Members
of this breach, and the breach has continued without cure for a period
of 10 days after the notice of breach, or (2) if the Closing shall not
have occurred on or before November 20, 2003 by reason of the failure of
any condition precedent under Section 4.1 hereof (unless the failure
results primarily from the Company breaching any representation,
warranty, or covenant contained in this Agreement or unless delayed by
regulatory approval beyond the control of the Parties); and
(c) NutraTek and the NutraTek Members may terminate this Agreement
by giving written notice to the Company at any time prior to the Closing
Date (1) in the event the Company has breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, NutraTek and the NutraTek Members have notified the
Company of this breach, and the breach has continued without cure for a
period of 10 days after the notice of breach, or (2) if the Closing
shall not have occurred on or before November 20, 2003 by reason of the
failure of any condition precedent under Section 4.2 hereof (unless the
failure results primarily from the Members and/or NutraTek breaching any
representation, warranty, or covenant contained in this Agreement).
6.2 Effect of Termination. If any party hereto terminates this
Agreement pursuant to Section 6.1 above, all rights and obligations of
the parties hereunder shall terminate without any liability of any party
to the other party (except for any liability of any Party then in
breach); provided, however, that the confidentiality provisions
contained herein shall survive any such termination.
VII. GENERAL PROVISIONS.
7.1 Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties concerning the subject matter
hereof and supersedes any and all prior negotiations, understandings or
agreements in regard thereto.
7.2 Applicable Law. This Agreement shall be construed in
accordance and governed by the laws of the State of Nevada.
7.3 Notices. Unless otherwise changed by notice given in
accordance with this provision, any notice or other communications
required or permitted herein shall be deemed given if delivered
personally or sent by certified mail, postage prepaid, return receipt
requested, addressed to the other parties at the addresses set forth
above or, in the case of the Shareholders, at the address set forth
their signature.
7.4 Waiver. All rights and remedies under this Agreement are
cumulative and are not exclusive of any other rights and remedies
provided by law. No delay or failure in the exercise of any right or
remedy arising under this Agreement shall operate as a waiver of any
subsequent right or remedy subsequently arising under this Agreement.
7.5 Survival of Provisions. All agreements, representations,
covenants and warranties on the part of the parties contained herein or
in any instrument executed and delivered in connection herewith shall
survive closing of this Agreement and any investigation at any time made
with respect thereto.
7.6 Attorney's Fees. In the event of litigation for enforcement of
the terms of this Agreement or to enforce any remedy hereunder, the
prevailing party shall be entitled to recover from the other party any
and all costs and expenses, including reasonable attorney's fees, as may
be incurred.
7.7 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective personal
representatives, successors and assigns.
7.8 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.9 Execution by Facsimile. Facsimile execution of this Agreement
by any party is authorized and shall be binding upon all parties.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original hereof.
IN WITNESS WHEREOF, this Agreement has been executed on the date first
above written.
ADVANCED HEALTHCARE TECHNOLOGIES, INC.
By /s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Its President
NUTRATEK, INC.
By /s/Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Its President
SHAREHOLDERS AGREEMENTS AND COVENANTS
THE UNDERSIGNED, each being members of NutraTek, Inc. ("NutraTek") and
representing all of the issued and outstanding ownership of NutraTek,
hereby represent that they own the number of membership interests of
NutraTek as set forth beneath their respective signature below and
further covenant and agree to comply with, undertake to perform, and
abide by, the various covenants, warranties and undertakings as set
forth in Sections II, III and IV, of the foregoing Agreement and Plan of
Reorganization dated October 29, 2003 by and between NutraTek, Inc. and
Advanced Healthcare Technologies, Inc.
EXECUTED on the date set forth below the respective signatures.
SHAREHOLDERS:
Name:Xxxxxx Xxxxxxx
Percentage 51%
Date: October 29, 2003
Name: Xxxxxxxx Xxxxxxx
Percentage: 49%
Date: October 29, 2003
EXHIBIT A
THIS EXHIBIT is attached to and made a part of that certain Agreement
and Plan of Reorganization dated October 29, 2003 between and among
ADVANCED HEALTHCARE TECHNOLOGIES, INC. (the "Company") and NUTRATEK,
INC. ("NUTRATEK")
Legal Opinion
The legal opinion shall contain the following:
The Company [NUTRATEK] is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Utah.
The authorized capital stock of the Company [NUTRATEK] and the shares of
common stock of the Company [NUTRATEK] are as set forth in the Company's
[NUTRATEK] representations. All outstanding shares of the Company's
[NUTRATEK] common stock are duly and validly authorized and issued, are
fully paid and nonassessable, and have not been issued in violation of
any preemptive rights of stockholders, if any. To the knowledge of such
counsel, there is no existing option, warrant, call, subscription, or
other agreement or commitment obligating the Company [NUTRATEK] to issue
or sell, or to purchase or redeem, any shares of its capital stock other
than those represented by the Company [NUTRATEK] to NUTRATEK [the
Company] in this Agreement.
To their knowledge, all consents or approvals by third parties required
in connection with the execution and consummation of this Agreement have
been duly obtained and no consents or approvals by any additional third
parties or by any governmental agency are required in connection
therewith.
To their knowledge, the execution of this Agreement and the transactions
contemplated hereby will no result in the breach of any term or
provision of, or constitute a default under, any provision or
restriction of any indenture, agreement, or other instrument to which
the Company [NUTRATEK] is a party or by which it is bound, nor will it
conflict with the provisions of the Articles of Incorporation or Bylaws
of the Company [NUTRATEK].
All corporate action (including the Board of Directors and approval by
the Stockholders) required to authorize the transactions contemplated by
this Agreement have been duly and properly taken.
The Agreement have been duly authorized, executed, and delivered by the
Company [NUTRATEK] and constitutes a valid agreement, legally binding
upon the Company [NUTRATEK} and enforceable in accordance with its
terms.
The Stockholders of NutraTek have full right and power to transfer and
deliver their shares pursuant to this Agreement, free and clear of any
liens, encumbrances, restrictions or claims.
EXHIBIT B
THIS EXHIBIT is attached to and made a part of that certain Agreement
and Plan of Reorganization dated October 29, 2003 between and among
ADVANCED HEALTHCAREHOLDINGS, INC (the "Company") and NUTRATEK, INC.
("NUTRATEK")
Ownership List
The following is the name and address of each NUTRATEK shareholder,
together with the number of his shares of NUTRATEKS's common stock and
the number of shares of the Company's Common Capital Stock which the
Company shall issue to such shareholder in accordance with the terms of
the above referenced Agreement:
NutraTek Shareholder Shares of NUTRATEK Shares of Company
Name and Address Common Stock Common Capital Stock
